Historically, many behavioral health providers have operated on a cash-pay basis out of necessity. But as reimbursement options continue to increase for mental health and substance abuse treatment, that no longer has to be the case.
Parity requirements have brought commercial payers more substantially into the mix, while opportunities for providers to be reimbursed by Medicaid and Medicare also continue to grow.
But as the behavioral health payer landscape becomes more complex, so do the requirements facing providers. As such, it’s vital for them to develop robust compliance programs to ensure success. Doing so can save time, money and headaches in the long run, Polsinelli shareholders said during a recent webinar.
“Anytime you’ve got a compliance issue or enforcement issue, there’s significant business interruption, and there’s potential for financial penalties and reputational harm,” Polsinelli shareholder Bragg Hemme said during the presentation. “Having a good compliance program will help you in the event that something does go wrong.”
Kansas City, Missouri-based Polsinelli is a law firm with more than 875 attorneys in more than 20 offices nationwide. Behavioral health is an area of focus for Hemme, as well as the firm.
In the past, compliance programs haven’t always been top priority for behavioral health providers. One reason for that is that is due to the lack of oversight traditionally associated with the old standby cash-pay model.
“Now that more and more behavioral health care providers are billing the federal and state governments, [compliance] becomes more and more important,” Hemme said. “People used to just rely on calling legal [but] as these questions become more prevalent, that may not always be the right answer.”
The compliance landscape is becoming increasingly complex, as the number of rules and regulations governing behavioral health providers continues to grow. That’s true across various levels and payer types.
On the federal level for example, behavioral health providers who are reimbursed by payers such as Medicare are governed by the anti-kickback statute, the false claims act and the civil monetary penalty law, among other rules. Additionally, the Eliminating Kickbacks in Recovery Act (EKRA), which passed last year, added another level of complexity to the mix: The federal law applies to providers reimbursed to federal and commercial payers.
These laws scrutinize referral processes, employment models, claims filings and payment etiquette, just to name a few examples.
“Basically, every aspect of your business we have to pay attention to to make sure that we’re not running afoul of any of these laws,” Hemme told webinar attendees.
On the state level, the industry has seen an uptick in consumer protection activity. For example, a growing number of states are putting in all payer anti-kickback statutes and rules to limit how behavioral health providers can legally operate.
“[These issues] don’t necessarily arise from your payer-provider agreements with Medicare and Medicaid,” Polsinelli shareholder Jennifer Evans said during the webinar. “You’ve probably been thinking about these already, but there’s increased scrutiny.”
On top of that, compliance considerations are also becoming increasingly important for those reimbursed by commercial payers, Evans said.
“There’s more and more compliance enforcement and audits for commercial coverage,” she said. “And so a compliance program that’s developed using the seven effective elements by the government for government payers will very much help promote compliance and avoid commercial problems with commercial payers.”
Those seven elements have been furnished by the Office of Inspector General for Health and Human Services, Evans and Hemme said.
The elements include having written policies and procedures; a compliance infrastructure; effective education and training; effective communication; effective auditing and monitoring; effective investigation into violations; and a consistent disciplinary process.
“The tighter your compliance plan and the more responsive you are to compliance concerns, there’s decreased opportunity for investigations, penalties, litigation, government mandated integrity provisions — which are all very, very expensive,” Hemme said.
